IMPORTANT! THIS LEXMARK CLOUD SERVICES WEBSITE IS PASSWORD PROTECTED. THIS WEBSITE INCLUDES WITHOUT LIMITATION THE PROVISION OF ANY SOFTWARE OR SOFTWARE PLATFORM OR CLOUD SERVICES, AND TECHNOLOGY, METHODS, PROCESSES, SPECIFICATIONS, SOLUTIONS, UTILITIES, GRAPHICS, DATA AND ANY OTHER INFORMATION MADE AVAILABLE BY LEXMARK BY AND THROUGH THE SITE (COLLECTIVELY THIS "SITE"). YOU MAY ONLY USE THIS SITE IF YOU HAVE BEEN GRANTED SPECIFIC ACCESS BY LEXMARK INTERNATIONAL, INC. AND/OR LEXMARK INTERNATIONAL TECHNOLOGY SARL ("LEXMARK") OR ITS AUTHORIZED RESELLER, BY ISSUANCE OF A LOGIN ID AND PASSWORD AND AGREE TO THE TERMS HEREIN. ANY OTHER USE OF OR ACCESS TO THIS SITE IS STRICTLY PROHIBITED.
PLEASE REVIEW THESE LEXMARK CLOUD SERVICES TERMS OF USE ("TERMS OF USE") CAREFULLY. IN ORDER TO USE THE SITE YOU MUST ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND THESE TERMS OF USE AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE BY CLICKING ON THE CORRESPONDING CHECKBOX "I ACCEPT." FURTHERMORE, BY CONTINUING TO USE THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE AND ANY NEW VERSIONS HEREOF PROVIDED TO YOU VIA THE SITE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE, YOU WILL NOT BE ABLE TO USE THE SITE.
1. AGREEMENT TO CONTRACT ELECTRONICALLY; AUTHORITY TO CONTRACT. These Terms of Use constitute a legal agreement between you (either an individual or a single entity) and Lexmark that, to the extent your access is not otherwise subject to a written agreement You and Lexmark agree to form this agreement to the Terms of Use electronically. This means that by clicking on the corresponding checkbox "Accept" and accessing this Site, you (i) acknowledge your agreement to these Terms of Use and that you are doing so with the intent to "sign" a contract with Lexmark; and (ii) represent that you are of the legal age of majority in the place you accept these Terms of Use and, if applicable, you are duly authorized by your employer or principal to act on its behalf to legally bind the organization to these Terms of Use. By "you" or "your," we mean the individual or entity (such as a company or organization) that has been granted access to this Site for the purpose of, including but not limited to, downloading, accessing and/or using the Materials contained herein. For purposes of these Terms of Use, "Materials" shall mean collectively the downloadable and/or redistributable firmware, software applications, tools (such as device management tools), updates and upgrades (collectively, the "Licensed Software"); and administrative and end user documentation related to any of the foregoing, including but not limited to the notification of access credentials, ("Documentation") and any other materials or information accessible to you on this Site.
2. ACCOUNTS. You agree that the information provided by you to Lexmark, including your contact information is true, accurate and complete, and you will notify Lexmark of any change to such information. You agree that you will not misuse or abuse account access and passwords. Your right to use the Site is not transferable to a third party, provided, however, subject to these Terms of Use, you may authorize end users to access and use this Site by and through your account, or in the case of a Lexmark authorized reseller, to authorize its customers provided they agree to these Terms of Use ("End Users"). You agree that you (i) will not use the Site password of another party, (ii) will not share your password with any other party, and (iii) will take all reasonable precautions to protect its secrecy. You agree to accept responsibility for all activities that occur under your account or password.
3. FEEDBACK. Lexmark welcomes all comments, suggestions, enhancement requests, recommendations, corrections or other feedback ("Feedback"). You grant to Lexmark and its affiliates a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into its products or services any Feedback provided by you or your End Users relating to the Site.
4. USE OF THE SITE
4.1. GENERAL
4.1.1. You will use the Site in accordance with the applicable Documentation. You will not use, or permit others to use the Site in any manner which (a) disrupts the normal use of the Site by Lexmark or other users of the Site, (b) impacts the privacy, integrity or security of Lexmark or other users, (c) allows unauthorized access to the Site, or (d) violates any applicable local, state, federal or international law or regulation, including but not limited to any applicable economic, financial or trade prohibition, sanction or embargo.
4.1.2. You will not disassemble, reverse engineer, reverse compile, modify, alter, or create derivative works of any portion of the Site, conduct any penetration testing on the Site, or disseminate any performance-related information related to the Site.
4.1.3. Your usage of the Site may be further limited to any restrictions provided in writing with your access credentials, including but not limited to only certain cloud services or Materials of the Site and any volume usage or time limits in relation thereto. You are responsible for monitoring your use and are responsible for breaches of these Terms of Use by any of your End Users obtaining access by your or through your actions.
4.2. PRE-RELEASES. Lexmark may make available to you through the Site certain products, features, services, software, technology or other information not yet generally available, including such products, features, services, software or other technology that are labeled as "preview," "pre-release" or "beta" (collectively, "Pre-releases"). In addition to Section 4.1, Lexmark grants to you a personal, nonexclusive, non-transferable limited license to access and use Pre-releases solely for your internal evaluation purposes and in accordance with any Documentation. You shall have no right to license, copy, distribute or otherwise allow access of any such Pre-releases to any third party for any purpose whatsoever.
4.3. EVALUATION. Lexmark may make the Site or portion of the Site available to you on a limited basis for evaluation purposes only. In addition to Section 4.1, if your Documentation indicates that you are granted access to the Site for evaluation, Lexmark grants to you a personal, nonexclusive, non-transferable limited license to access and use such portions of the Site and/or Materials in a test environment or with test data only solely for your internal evaluation purposes and in accordance with any Documentation. You shall have no right to license, copy, distribute or otherwise allow access of any of the Site or Materials to any third party for any purpose whatsoever.
4.4. MOBILE ACCESS TO THE SITE. You and your End Users may be able to access the Site or certain Materials through mobile applications obtained from third party websites such as Android or Apple app stores. The use of mobile applications may be governed by the terms and conditions presented upon downloaded/access to the mobile application and not by these Terms of Use.
4.5. ADDITIONAL TERMS APPLICABLE TO SPECIFIC SITE SERVICES OR MATERIALS. Some services or Materials provided on or through the Site may have further requirements, rules, guidelines, license agreements, or other terms and conditions that apply and you and, as applicable, your End Users, will be required to agree to such applicable additional terms before being provided access and/or use.
5. SOFTWARE DOWNLOADING. Your use of the Site may also include Licensed Software that may be downloaded, installed and, in some cases, distributed. If you are authorized to download, distribute and/or install software applications, updates and upgrades from this Site, you agree to comply with the following terms and conditions when downloading, distributing and/or installing such Licensed Software:
5.1. Any Licensed Software that is available through the Site for download, distribution or installation is the copyrighted work of Lexmark and/or its licensors. Subject to the terms and conditions of these Terms of Use, Lexmark grants you a personal, nonexclusive, non-transferable license (and if you are a Lexmark authorized reseller, the right to sublicense to your customers), to download and install and/or distribute the Licensed Software to End Users for use on or in connection with Lexmark devices or other devices as specified in the applicable Documentation.
5.2. Copying or reproducing the Licensed Software to any other server or device for further reproduction or redistribution is prohibited except expressly in accordance with these Terms of Use.
5.3. Licensed Software and the corresponding software license may be downloaded using a device monitoring agent downloaded from a device enrollment tool, the use of which may be subject to its own end user license agreement.
5.4. Your End Users may only use and distribute a copy of the Licensed Software to their end user devices if they accept these Terms of Use and follow all of Lexmark's direction and procedures for using, downloading and distributing the Licensed Software.
5.5. Neither you nor your End Users shall create derivative works of the Licensed Software or attempt to decompile or reverse-engineer the Licensed Software, except as and only to the extent expressly permitted to do so by applicable law for the purposes of inter-operability, error correction, and security testing. If you or your End Users have such statutory rights, you will notify Lexmark in writing of any intended reverse engineering or decompilation.
5.6. You shall (i) obtain the express authorization of each End User to have such Licensed Software installed on their printers or other devices, and (ii) provide a copy of the applicable End User software license to all end users concurrent with the distribution of the Licensed Software. Use of the Licensed Software is subject to the license terms of the license agreement that is to accompany or be provided with the Licensed Software. If you or in the case of an authorized reseller, your customer fails to obtain the express authorization of or provide such software license to End Users, you agree to indemnify, defend and hold Lexmark harmless from any damages, fines, claims, causes of action and expenses (including reasonable attorneys' fees) ("Claims") to the extent such Claims would not have occurred had you or, in the case of an authorized reseller, your customer obtained such authorization or provided such software license to End Users.
5.7. Although it is not obligated to do so, in the event Lexmark provides or makes available any error corrections or updates to the Licensed Software, you agree to provide, or in the case of a Lexmark authorized reseller, have your customer provide, such error corrections or updates to End Users in accordance with Section 5.6.
5.8. Portions of the Licensed Software provided to you may constitute third party software, including software provided under a public license ("Third Party Software"), and are licensed to you subject to the terms and conditions of the software license agreements set forth in a file accompanying the documentation for such Licensed Software. Unless stated otherwise therein, the use of such Third Party Software shall be governed exclusively by the terms and conditions of such software license agreements.
6. IMMEDIATE SUSPENSION OR TERMINATION. Lexmark reserves the right to suspend or terminate your, or in the case of an authorized reseller, your customers' rights to use all or any portion of the Site, including but not limited to distributing Licensed Software, without liability to you or, in the case of any authorized reseller, your customers or any End Users in the event Lexmark, in its sole opinion, believes (i) the use of the Site, including but not limited to any cloud services or the Materials, is not in accordance with these Terms of Use, or (ii) an infringement claim appears likely or is made about all or any portion of the Site, including but not limited to any Licensed Software. If you breach any of these Terms of Use, your authorization to use this Site terminates with immediate effect following Lexmark's breach notice, and to the extent you are not an End User, you must immediately destroy and/or discontinue the use of any downloaded or printed Materials and/or Documentation.
7. TERMINATION. Unless your other Lexmark Agreement(s) provide(s) otherwise, Lexmark may terminate these Terms of Use and access to this Site with or without cause at any time following at least thirty (30) days advanced notice. Any immediate termination for cause by Lexmark remains unaffected.
8. AVAILABILITY OF MATERIALS, CONTENT OR SERVICES
8.1. Information on the Site may reference or cross reference Lexmark products, programs, services that might not be available in your location. Such references do not imply that Lexmark plans to make such products, programs or services in your location. Please contact your local Lexmark representative for more information.
8.2. Unless your Lexmark Agreement(s) provide(s) otherwise or unless restricted by applicable law, you understand and agree that Lexmark may, in its sole and absolute discretion, modify or discontinue offering any services from or Materials on this Site at any time. If Lexmark makes such changes, Lexmark will post the changes on the Site prior to the effective date, along with the effective date of the revision. Any such changes will apply from the effective date of the revision if you proceed to use the Site or any services, Materials or Documentation from the Site.
9. YOUR CONTENT; DATA AND SECURITY
9.1. YOUR CONTENT. You acknowledge and agree that any and all information, data, images, text, photographs, fonts, typefaces, illustrations, graphics, audio clips, works of authorship, video clips, trademarks or other content provided to Lexmark, its affiliates and their respective agents by you or on behalf of you or your customer, for use in connection with this Site ("Content") is your sole responsibility. You grant to Lexmark a non-exclusive, non-transferable, royalty-free license to translate, transmit, transfer, reproduce and use your Content to the extent reasonably necessary to provide the cloud services accessed and used by you by and through the Site. You will be solely responsible for any damage to any party resulting from your providing the Content or using the Content in relation to the Site. Under no circumstances will Lexmark be liable in any way for any user or third party Content, including, but not limited to, any errors or omissions in any such Content, for any loss or damage of any kind incurred relating in any way to the use of any such Content posted, emailed or otherwise transmitted via this Site, for any claims of intellectual property infringement or misappropriation related to any Content, including your Content, or for any unauthorized access to or use of such Content by third parties.
9.2. PROTECTED DATA WARRANTY. You represent and warrant that you have obtained and will maintain compliance with applicable laws, including relevant data protection laws and data privacy laws, for the use, processing and transfer of Content provided to Lexmark under these Terms of Use. By providing personal data to Lexmark, you represent and warrant that you have obtained all requisite consents from data subjects, have provided data subjects all information required by applicable laws with respect to such personal data, have obtained any necessary authorizations from competent authorities, and particularly accept and confirm that Lexmark may collect, process and store such personal data.
9.3. DATA TRANSFER. You agree that Lexmark may transfer your Content to the United States or other countries for processing in accordance with your use of this Site. Any transmissions or transfers of such information and data to or from you will be in accordance with the Lexmark's Privacy Notice found at Lexmark.com/privacy https://www.lexmark.com/en_us/privacy-policy.html. For the purposes of processing and transferring of personal data in jurisdictions governed by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), the Parties shall enter into a data processing addendum in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms.
10. INTELLECTUAL PROPERTY
10.1. The Site, including but not limited to all cloud services and Materials available on this Site, other than your Content (defined above) are owned by Lexmark and/or its licensors and suppliers and are protected by copyright, trademark, patent and/or other intellectual property laws, and any unauthorized use of the Site is prohibited. Except as expressly provided herein, Lexmark and its licensors and suppliers do not grant any other express or implied rights to access, distribute or use the Site, including any cloud services, Materials or Documentation.
10.2. The trademarks, logos, and service marks ("Marks") displayed on this Site are the property of Lexmark or other third parties. You are not permitted to use the Marks without the prior written consent of Lexmark or such third party that may own the Marks. Lexmark and the Lexmark logo are the trademarks or registered trademarks of Lexmark in the United States and/or other countries. All other trademarks are the property of their respective owners.
11. THIRD PARTY WEB SITES, CONTENT, PROUDCTS AND SERVICES. The Site may provide links to websites and access to content, products and services of third parties, including users, advertisers, affiliates, and sponsors of the Site. You agree that Lexmark is not responsible for third party content, products or services provided on or through the Site, which you, in your sole discretion, may determine to access and use, or for any changes or updates to such third party sites, and you bear all costs and risks associated with your access to and use of such websites and third party content, products and services.
12. WARRANTY; DISCLAIMERS
12.1. ANY WARRANTY THAT MAY APPLY TO THE MATERIALS THAT YOU ACCESS ON THIS SITE SHALL BE AS SPECIFIED IN THE APPLICABLE LICENSE AGREEMENT AND SUCH WARRANTY IS THE SOLE WARRANTY GIVEN BY LEXMARK IN CONNECTION WITH SUCH MATERIALS. LEXMARK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF A THIRD PARTY'S RIGHTS. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE SITE, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OF ANY SOFTWARE OR CLOUD SERVICES. RESELLER SHALL MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF LEXMARK.
12.2. Except as provided otherwise in an applicable Lexmark Agreement, this Site and the Materials contained herein are provided "AS IS." Lexmark makes no representations or warranties, either express or implied, of any kind with respect to this Site, its operations, contents, information or the Materials contained herein. LEXMARK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THIS SITE OR ITS USE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF A THIRD PARTY'S RIGHTS.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LEXMARK, ITS AFFILIATES, OR ITS SUPPLIERS AND LICENSORS, BE LIABLE TO YOU FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT LEXMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THE USE OF THIS SITE, DOWNLOADING AND/OR USE OF ANY SOFTWARE, OR OF ANY SITE REFERENCED OR LINKED TO FROM THIS SITE.
14. INDEMNIFICATION. By using this Site, you agree to indemnify Lexmark, its parent company, subsidiaries, and affiliates, and each of their directors, officers, agents and employees ("Lexmark Indemnified Parties") and hold them harmless from and against any and all claims, regulatory actions, damages, liabilities, fines, penalties, costs and expenses, including attorney's fees, arising from or related to your violation of these Terms of Use or use of the Materials or this Site. By using this Site, you hereby release the Lexmark Indemnified Parties from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to this Site.
15. SERVICE INTERRUPTIONS. You understand and agree that the unavailability of the downloading of Materials and other services provided by the Site may occur from time to time. Lexmark agrees to exercise reasonable care to prevent such occurrences, however, under no circumstances will Lexmark, to the maximum extent permitted by law, be held liable for any financial or other damages due to such unavailability except as may be otherwise provided in an applicable Lexmark Agreement.
16. ORDER OF PRECEDENCE; MODIFICATION. In the event of any conflict between any applicable Lexmark Agreement and these Terms of Use, the applicable Lexmark Agreement shall take precedence to the extent of such conflict with respect to your use of this Site and Materials covered by the applicable Lexmark Agreement. Lexmark reserves the right to change these Terms of Use. If Lexmark makes such changes, Lexmark will post the revised terms and conditions on the Site, along with the effective date of the revision. Unless your Lexmark Agreement(s) provide(s) otherwise or unless restricted by applicable law, your use of the Site is then subject to the most current version of these Terms of Use posted on the Site at the time of such use.
17. MISCELLANEOUS PROVISIONS. If you are accessing this Site in a country which is located in Europe, Middle East and Africa, the laws of Switzerland shall govern the interpretation of these Terms of Use and any claims arising hereunder, regardless of choice of laws principles of any other jurisdiction. If you are accessing this site in any other country, the laws of the Commonwealth of Kentucky, United States of America, shall govern the interpretation of these Terms of Use and any claims arising hereunder, regardless of choice of laws principles of any other state. The UN Convention on Contracts for the International Sale of Goods shall not apply. Should any part of these Terms of Use be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with these Terms of Use, these Terms of Use shall take precedence with respect to your use of this Site. Lexmark's failure to enforce any provision of these Terms of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision.
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